1989 PLP 1418 (MLD)

Muhammad Ali Shaikh for Applicant. Faiz Muhammad Abbasi for Respondent No.4. The plaintiff has filed this Revision Application against the judgment dated 20‑12‑1988 passed by the District Judge, Thatta dismissing the Misc. Civil Appeal filed by the applicant and affirming the order dated 8‑9‑1988 of the Senior Civil Judge, Thatta. The facts leading to the filing of the above Revision are that the applicant filed a suit for declaration and injunction in the Court of Sr. Civil Judge, stating therein that he is a bona fide `Mirbehar' and he has profession of fishing since his forefathers. The applicant has been taking, lease of fishing of waters of two lakes namely `Hadero' and `Jhang' located in Talka and District Thatta from the Fisheries Department continuously since last thirty years and he has been in possession of the same as lessee. It is the case of the applicant that during the last two to two and half years there was no rain in Sind, therefore, there was no sufficient water in these lakes with the result that neither there was any growth of fish nor there was any fishing in these lakes and the suffered heavy losses during the last two years. The applicant moved an application to the respondent No.1 for the extension of the lease for the period of three years. It is the further case that the respondent No.3. had recommended his case for extension of the lease. Ultimately the lease was granted to the respondents Nos.4 and

5. In these circumstances the applicant filed suit for declaration and permanent injunction. Alongwith the plaint the applicant filed an application under Order 39 Rules 1 and 2 C.P.C. The application was dismissed by the trial Court. The applicant went in appeal which was also dismissed. The applicant being aggrieved has filed the present revision application, I have heard Mr. Mohammad Ali Sheikh in support of this Civil Revision and Mr. Faiz Mohammad Abbasi Advocate for respondent on pre‑admission notice. The contention of the learned counsel for the applicant before the Appellate Court `was that there had been no auction proceedings and the documents like bid sheet etc., in respect of the auction proceedings have been prepared falsely. The contention was controverted in the counter‑affidavits filed by the respondents. Both the Courts held that the applicant has not made out a prima facie case. The learned counsel for the applicant repeated the same contention before me. The learned Judge held that the cause is not of word against word only but a documentary evidence particularly a bid sheet supports the contention of the respondents 3 and

4. I have referred to the reasons upon which the learned Judge based his conclusion because it must, in my opinion, be borne in mind that I have been asked to interfere in this case with orders made by the lower Courts in the exercise of their discretion. That discretion must of course be exercised judicially and not arbitrarily but if it has been exercised judicially this Court cannot in my opinion, substitute its discretion for that of the Judge. In the present case, the Courts below have seriously considered the matter in detail, and have held that the applicant has not made out a prima facie case, the balance of convenience is not in his favour. It is not possible to hold that their views are absurd or perverse, and in these circumstances, even if I were of opinion that here was prima facie case, I would not interfere. For the aforesaid reasons the Civil Revision is dismissed in limine, consequently the application is dismissed. In the circumstances of the case I make no order as to costs. Both the learned counsel for the parties submit that a very short point is involved in the suit and the lease is to expire by the end of this year. In these circumstances I direct the learned trial Court to frame proper issues and decide the suit in accordance with law after affording the parties a fair chance to lead evidence, oral and documentary within a period of three months from the communication of this order. The office is directed to communicate the order forthwith to the trial Court. M.Y.H./G‑115/K Petition dismissed.